JOHN J. WOTTRENG, Plaintiff-Appellant, v. CBTM ELBERON, LLC, Defendant-Appellee, and JOHN DOE, et al., Defendants.
APPEAL NO. C-220357; TRIAL NO. A-1900011
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 30, 2023
[Cite as Wottreng v. CBTM Elberon, L.L.C., 2023-Ohio-2207.]
BERGERON, Judge.
Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Reversed and Cause Remanded.
Flagel & Papakirk LLC and James Papakirk, for Defendant-Appellee.
BERGERON, Judge.
{¶1} In early 2019, plaintiff-appellant John Wottreng filed a complaint against defendant-appellee CBTM Elberon, LLC, (“CBTM“) and various John Does, alleging that his apartment roof collapsed, leaving him with extensive actual damages and lasting physical injuries. Although it initially answered the complaint, CBTM failed to defend itself after its lawyer withdrew, and the trial court ultimately awarded Mr. Wottreng a $1 million judgment. Over two years later, when CBTM claims it first learned of the judgment, it filed a motion to set aside the judgment, which the trial court granted. Mr. Wottreng presently appeals this decision, arguing that the trial court erred in granting CBTM‘s untimely motion to set aside the judgment. Because CBTM‘s actions fell under the category of excusable neglect, it was subject to a one-year time period under
I.
{¶1} Mr. Wottreng allegеdly suffered extensive injuries when the roof of his apartment unit collapsed on him. He accrued hospital and recovery bills totaling $122,000 and sustained permanent injuries stemming from traumatic brain injury. In January 2019, he filed a complaint against CBTM—the company that owned and managed the apartment unit at issue—and assorted John Does, asserting a negligence claim and seeking monetary damages. He amended the complaint a few days later. CBTM received service through its statutory agent, and its counsel appeared and
{¶2} A few months later, in May 2019, CBTM‘s counsel moved to withdraw, citing CBTM‘s failure to communicate with counsel or pay his invoices. He served his сlient notice of the hearing on the matter by ordinary and certified mail at its last known address. During the hearing, CBTM‘s counsel explained that he had been retained by CBTM, but CBTM failed to respond to his attempts at communication, which included sending letters (among them, a certified copy of his motion to withdraw) and various attempts to reach out by phone. The trial court ultimately granted defense counsel‘s motion to withdraw. No substitute lawyer appeared in his stead, and CBTM took no further steps to defend the litigation.
{¶3} The trial court eventually convened a hearing in January 2020, at which Mr. Wottreng testified to his injuries and damages. He explained that, as a result of his apartment roof collapsing, he had accrued medical bills in the amount of $122,000, spent a year and a half in a nursing home recovеring from his injuries, suffered from ongoing symptoms associated with his traumatic brain injury, and would never be able to return to work. With all of this evidence uncontested, the trial court entered a $1 million judgment.
{¶4} Fast-forward over two years. In March 2022, CBTM sought to vacate the judgment, arguing that it lacked any knowledge of the judgment and mistakenly believed the case was resolved in its initial stages. CBTM claimed that it only learned of thе judgment in October 2021 when it was served with a foreclosure action filed by Mr. Wottreng, through which he sought to collect on the judgment. Following briefing and a hearing on the matter, the trial court granted CBTM‘s motion to sеt aside the
II.
{¶5} In his first assignment of error, Mr. Wottreng insists that the trial court erred in vacating the judgment in this case. According to him, CBTM‘s actions cоnstituted mistake, inadvertence, or excusable neglect, obligating it to bring its motion to set aside the judgment within a year after the entry of final judgment. See
{¶6}
{¶7} In Kay v. Marc Glassman, 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), the Ohio Supreme Court explained that ”
{¶8} Assuming, without deciding, that CBTM presented a meritorious defense, we proceed to consider whether it is entitled to relief under one of the grounds provided in
{¶9} As an initial matter, Ohio law confirms that
{¶10} This court has consistently categorized lack оf notice as falling within
{¶11} Similarly, here, Zennat Khwaja—a member of CBTM—admitted in her affidavit that she had notice of Mr. Wottreng‘s suit contemporaneously with it, but because she allegedly did not hear from CBTM‘s attorney, she believed the matter had been handled. Based on her admission that she knew of the lawsuit and her assumption that her attorney had matters under control, the issue falls squarely within the category of neglect under
{¶13} CBTM also points to Sell v. Brockway, 7th Dist. Columbiana No. 11 CO 30, 2012-Ohio-4552, ¶ 26-27, where the Seventh District concluded that “[t]he failure оf counsel to receive notice of the hearing taken in conjunction with his suspension creates a somewhat extraordinary or unusual situation.” In addition to lack of notice, defendant‘s attorney was suspended from the practice of law in the midst of the legal proceedings. Id. Here, CBTM‘s prior lawyer explained in his filings that he sought to contact the company both in writing and by phone, but it never responded. Again, we see no such extraordinary or unusual circumstances such as the suspension of a law license in the record before us. CBTM simply fails to establish that it is entitled to avаil itself of
{¶14} Because
{¶15} CBTM‘s
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{¶16} In light of the foregoing analysis, we sustain Mr. Wottreng‘s first assignment of error. We reverse the trial court‘s judgment granting CBTM relief from judgment under
Judgment reversed and cause remanded.
CROUSE, P.J., and WINKLER, J., concur.
The court has recorded its entry on the date of the release of this opinion.